The late 19th and early 20th Centuries saw the passage of a number of state and federal laws allowing prosecutions for political speech that advocated or implied violence against government. In 1917 and 1918, for example, Congress passed the Espionage Act, the first major federal law against seditious speech since the Sedition Act of 1798.

One of the prosecutions under the Espionage Act led to the 1919 case of Schenck v. US, in which Justice Oliver Wendell Holmes declared that free speech does not protect words that are “used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” This was the famous “clear and present danger” test, which was built on the metaphor of a “marketplace of ideas” in which a speaker has the right to communicate any idea if the listener has to have the time to think about the idea before acting and if, under the circumstances, society can afford for people to think about the idea. Despite upholding Mr. Schenck’s conviction, Justice Holmes thought that this was a new and broader view of free speech.

Six years later, however, the Supreme Court backed away from the “clear and present danger” test in deciding the case of Gitlow v. New York (1925). The case involved Benjamin Gitlow, who was arrested, prosecuted, and convicted by New York in 1919 under its Criminal Anarchy Act of 1902. Gitlow was convicted for publishing The Left Wing Manifesto, a pamphlet that, among other things, called for “political mass strikes” and “revolutionary mass action” to “overthrow and destroy organized parliamentary government”. It ended by calling “the proletariat of the world to the final struggle”. Gitlow appealed his conviction to the Supreme Court, which ruled 7-2 in favor of New York.

The case is important for two reasons. The Court declared unambiguously for the first time (though without much argument) that under the Fourteenth Amendment’s “due process” clause, the First Amendment’s protection of freedom of speech applies against state governments like New York as well as the federal government. In this respect, Gitlow expanded First Amendment protections. At the same, the Court held that Gitlow’s speech was not immune from prosecution because the First Amendment does not protect any speech that is “inimical to the public welfare, tending to corrupt public morals, incite to crime, or disturb the public peace”. The Court believed that a speaker has no right to try to offer harmful ideas to any listener under any circumstances. According to the Court, there is no “marketplace” for ideas that have a bad tendency. Throughout the 1930s and 1940s, the Supreme Court (and lower federal and state courts) continued to use the “bad tendency” test in evaluating free speech cases.

Starting in the 1950s, however, the Supreme Court began to shift toward Justice Holmes’ “clear and present danger” test through a series of cases involving the communication of communist ideas. Using Holmes’ test, the Court decided that the mere abstract advocacy of overthrowing the US government cannot be punished, but it also held that under the circumstances of the Cold War, the danger of communicating communist ideology was so great that no one had the right to even try to form a communist political party in the United States.

In the 1960s, the Supreme Court started to move toward a broader view of the “clear and present danger” test, culminating in the 1969 case of Brandenburg v. Ohio. Clarence Brandenburg was a Ku Klux Klan member who was arrested, prosecuted, and convicted by the State of Ohio for declaring at a Klan rally that “there might have to be revengeance” against white officials who “sell out” the Caucasian race. When Brandenburg appealed to the U.S. Supreme Court, it unanimously struck down his conviction because political speech can only be banned if it is “an incitement to imminent lawless action, and likely to produce such action”.

This narrower interpretation of the “clear and present danger” test shifts from punishing the speaker for what he says toward holding the listener accountable for how he reacts to what is said, except under very narrow circumstances when the speaker is inciting the listener to imminent lawless action. Even this broader view of free speech was not enough for two justices (Justices Black and Douglas), who argued that all of the Court’s tests for freedom of speech – “bad tendency”, “clear and present danger”, “imminent lawless action” – should be scrapped in favor of unrestricted political speech.

Since the Brandenburg decision in 1969, the Supreme Court has moved ever further toward the views of Justices Black and Douglas. The Court now openly embraces the idea that the First Amendment protects a completely “robust, wide-open, and uninhibited” marketplace of ideas in which government cannot punish a speaker for communicating any political idea to a listener, subject only to reasonable regulations of the time, place, and manner of the speech.

Jeffrey Sikkenga is professor of political science at Ashland University, where he teaches courses on the US Constitution and political thought (https://www.ashland.edu/cas/faculty-staff/dr-jeff-sikkenga). He is adjunct fellow at the John M. Ashbrook Center for Public Affairs, senior fellow at the Program on Constitutionalism and Democracy at the University of Virginia, and co-editor of History of American Political Thought (https://rowman.com/ISBN/9780739106235/History-of-American-Political-Thought). During 2017-18, he will be a Visiting Scholar at Stanford University’s Hoover Institution and a Senior Fellow at the School of Public Policy at Pepperdine University.

Thank you for a VERY interesting essay. I find it fascinating the ebb and flow of free speech which take for granted. Except for the ill founded Seditious Act of 1798, I dare say the Founders were squarely where we are today. Free speech is to be freely exercised, even if illogical, offensive, or anti-American. I’m glad we made the U-turn. It also gives us hope that we will return to other founding principles.